Why you need to update your will as soon as you decide to separate or divorce
Why you need to update your will as soon as you decide to separate or divorce
Making a will, or updating your current one, may not be high on your list of priorities when you are going through the upsetting experience of separation or divorce but it is something you need do if you want to ensure that your assets do not unintentionally go to your former husband or wife when you die.
Deborah Adams, head of private client department with Parnalls in Launceston explains the rules on wills when you get divorced or separate.
What happens if I die without a will before my divorce is finalised?
If you die without making a will, the question of who should get what will be determined by the rules of intestacy. These set out who is entitled to inherit your estate and the amount they should receive.
If you are married without children your spouse will receive everything. If you are married with children your spouse will receive all your personal belongings, the first £250,000 plus half of the remaining value. Your children will receive the other half when they reach 18 years of age.
The right of your former husband or wife to inherit under the intestacy rules applies even if, at the time of your death, you have separated from them and have commenced divorce proceedings.
It is important to be aware that even if you have received a decree nisi from the court confirming that grounds for divorce have been established, you are still legally married until you receive the decree absolute confirming your divorce has been completed.
What happens if I have a will but I choose not to update it?
If you already have a will, but do not get around to updating it while you are separated or going through the divorce process, the terms of the will shall remain effective until you have received your decree absolute. This means that any gifts to your former spouse, or any appointments given to them to, for example, act as your executor or guardian to your children, will remain valid. This is the case even if you have been separated for many years.
Once your divorce has been finalised and the decree absolute has been received your will shall take effect as though your former husband or wife had died during your lifetime. What this means is that any gifts or appointments concerning them will no longer apply. This is fine if you have named other people in your will to act as your executor or to benefit from your estate, but problems can arise if you have left everything to your former spouse; in these circumstances, unless there are default provisions setting out what should happen, your estate will have to be dealt with under the intestacy rules.
I am getting divorced – what should I do?
As soon as you separate or make the decision to instigate divorce proceedings you should make a will or update your existing one to reflect any change in your wishes. The terms of your new will should reflect what you want to happen to your estate after your divorce. If, when your divorce is finalised, it turns out that the provisions of your new will cannot be carried out your will can be updated to reflect this. For example, you may have been ordered to hand over property included in the will as part of your financial settlement.
What about assets that I own jointly with my spouse?
As well as making a will it is important to deal with any assets that you own jointly with your former husband or wife. This is because it is not possible for some jointly owned money or property to be passed under a will – instead it automatically passes to the surviving joint owner when you die.
The rules on jointly owned money and property are straightforward, but the legal jargon that goes with it is not. Put simply, if you own property with your former spouse as ‘joint tenants’ your interest in the property cannot be left by will and, if you do not do something about it, will automatically pass to your spouse when you die. To address this problem, you can convert your ownership to that of ‘tenants in common’ which will allow you to leave your share in any jointly owned property to whoever you want. Steps should also be taken to deal with any bank accounts in joint names.
For a confidential discussion about wills and divorce, please contact Deborah Adams on 01566 772375 or email email@example.com
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
Is your reputation being threatened?
Making a will after your spouse or partner has died
Interns celebrate completion of internship at solicitors
Selling your home in a flat market, some top tips
Claiming compensation for a serious road traffic accident
New Media and Communications Court list reflects surge in internet defamation claims by Laura Baglow
Has your personal information been shared without your permission?
Planning your escape to the country, what you need to consider – part 2
Government consultation on new national model for shared ownership
Choosing a partnership structure
Planning for what happens when you die by Deborah Adams
Changes to legislation could offer protection for tenants in the private rental sector
Move to the country - Part One
The risks of DIY probate
Will your septic tank still be legal in January?
The death knell for ‘kiss and tell’?
Making a will when you retire
Selling your property at auction
Not looking so good - your guide to compensation for botched non-surgical cosmetic procedures
New threshold of seriousness in defamation proceedings
Legal considerations when building a granny annex
Choosing the right person for your power of attorney
Formal Interviews - Do you need legal representation?
Privacy rights and aerial images
Trustees’ duty to give information to beneficiaries
Five problems with a leasehold property
Taking your first commercial lease
Is your organisation protected from employee social media legal risk?
Have you been targeted by negative social media posts?
Farmers be alert when being inspected
Help for House Sellers?
Don’t let your digital assets end up in a digital grave
Valuing an estate for probate
Development proposals and your local authority search
What can you do if your child is injured in a serious accident
NetRights welcomes new protection for social media users
SHOULD I GET A LAWYER FOR A SPEEDING OFFENCE?
Supreme Court recognises that social media is a “casual medium” in libel battle
Choosing the best conveyancer who is right for you
Making a will after a second or subsequent marriage
Option or promotion agreement – which is best for landowners?
Anonymous pub and restaurant online reviews leave a bad taste
Have you had an accident involving a horse?
Help to Buy – beware of some cracks in the structure
Understanding Lasting Powers of Attorney
Changes to Energy Performance Certificate for Landlords
Had a cycling accident? Your route to obtaining compensation
New year, new home: tips to sell your home in the New Year
Tax Planning for your inheritance
Hearing loss: when your employer may be liable
Buying a home for your retirement, five things you need to consider
Farmers plan to diversify after Brexit
Ministers press ahead with probate fee shake-up - reports BBC News
Botched dental treatment? You may be entitled to compensation
Why a Health and Welfare Power of Attorney is a good idea
Will the new charge on building developments in Cornwall affect you?
Energy Performance Certificates – Do They Matter?
HMRC Challenging Stamp Duty Land Tax Payments
Ben Mitchell qualifies as a solicitor
The potential implications of Brexit on employment law
Appointing a guardian for your children
Houses in multiple occupation – new rules from October 2018
New Agriculture Bill published
Will Brexit affect my pension?
Dreaming of a holiday home? Sort out the legals before putting your feet up
Lasting Power of Attorney by Deborah Adams
Settled status after Brexit by Alexis Hager
How to choose an executor to administer your estate when you die
How overage agreements can boost profits from your land
Top tips for first-time buyers
How Could Brexit Affect My Farm?
Wills & Succession in Spain by Deborah Adams
Brexit – an international and local view by Alexis Hager, Litigation
Capital gains tax - important facts for non-residents of the UK
Buying a home: the importance of making sure the seller is entitled to sell
Changing a will after someone has died: it is possible and it could save you money
Your responsibilities when you have people working in your home
Sad passing of Battle of Britain pilot who served with Parnall family member
Considerations when buying a heritage property
Disciplinary proceedings at work: guide for employers
Employers should have a disciplinary process in place, but just following this may not be enough to avoid falling foul of the law and exposing yourself to the risk of an employment tribunal claim.